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Title VII of the Civil Rights Act of 1964 expressly prohibits discrimination on the basis of race, national origin, religion, and sex. While the statute does not reference sexual orientation, the EEOC has taken the position, in light of Supreme Court opinions holding that gender stereotyping constitutes unlawful discrimination, that Title VII also prohibits sexual orientation discrimination.

A federal district court in Pittsburgh, Pennsylvania, has agreed with the EEOC, denying an employer's motion to dismiss the EEOC's lawsuit alleging that it discriminated against a former employee on the basis of his sexual orientation. See U.S. Equal Employment Opportunity Comm'n v. Scott Medical Health Center, P.C., 2:16-cv-00225-CB (W.D. Pa. Nov. 4, 2011).

The court held that Title VII's ban on sex discrimination includes discrimination based upon "sex stereotypes" -- that is, preconceived notions of how a man or woman should think or act. "There is no more obvious form of sex stereotyping," the court stated, "than making a determination that a person should conform to heterosexuality."

In July 2015, the EEOC concluded that sexual orientation discrimination is a prohibited form of sex discrimination under Title VII. SeeBaldwin v. Department of Transportation, Appeal No. 0120133080. There, the EEOC proffered three reasons why Title VII's ban on sex discrimination necessarily included sexual orientation discrimination: (1) sexual orientation discrimination involves treating employees less favorably because of their sex because sexual orientation is inherently related to sex; (2) sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based on such stereotypes and norms have been found to be prohibited sex discrimination; and (3) sexual orientation discrimination punishes employees because of their close personal association with members of a particular sex, such as marital and other personal relationships.

To be sure, no judgment or jury verdict has been rendered, nor has there been any finding of discrimination. But the EEOC now has an opportunity to make its case.

If you would like a copy of the opinion or would like to discuss how the opinion might impact you, as an employee or an employer, contact us today at (859) 263-7884.